Fakes and Pirates Online: Is it an Unregulated Space in Kenya?

Kenya continues to witness a steady exponential growth of internet access. The Communications Authority of Kenya (CA), in its Third Quarter Sector Statistics Report for the Financial Year 2017/2018 notes that, “(Kenya’s) total data/Internet subscriptions grew (from the last review) by 8.2 percent, to record 36.1 million subscriptions (up) from 33.3 million recorded during the second quarter of the same financial year.”[1]The report further highlights the total internet subscriptions as standing at 36.1 million subscriptions as at March 2018, growing from the previous 25.7 million in March 2017. The CA attributes the growth in internet subscription to the proliferation of smart phones used to access video on demand, games, music, news and social media sites; which content is protected by copyright.[2]

The growth in
internet access and digital communication technologies, has expanded the vulnerability
to increased infringement of intellectual property rights (IPRs) through pirated-copyright
works[3]
and counterfeited products. The nature of internet and digital communication
technologies therefore not only increases by the volumes, the number of
potential infringers, but it also heightens the exposure to possible
infringement over the internet. The ease of modification and replication,
coupled by access, reach; evinces the vulnerability and brings into focus the
legal environment available for asserting and protecting IPRs in this space. Consequently,
from an enforcement perspective, the IPR owners are more vulnerable in a
social-media internet era. This post discusses three (3) recent instances in
Kenya under which social media platforms have been exploited to violate IP
Assets.

Photographs and Photographic Works

First, photographs and photographic works are protected as
copyrighted works, under the Copyright Act, 2001, any unauthorized use is
prohibited. Two infamous cases of unauthorized user of copyrighted photographs[4],
are instructive; one by the former Nairobi Governor Dr. Evans Kidero where he
used an image of the Nairobi skyline[5]
in his election campaign poster: it emerged that he had not sought nor obtained
an assignment or license to use the photograph. This poster was widely
circulated online, and as captured in the article afore-cited, the matter was
settled-out of Court. The other instance involved the Law Society of Kenya
Nairobi Branch’s unauthorized use of the copyrighted photo “Fire in the Sky
Nairobi” in a flyer for one of its notices.[6]
This matter was equally settled out of court. Both instances of unauthorized
use of copyrighted photos, evince social media’s vulnerability in enabling ease
of access, modification, replication and subsequent publication absent authorization
or consent of the copyright owner.

Books and Literary
Works

Secondly, and similarly infamous is the infringement of copyright
works involving ‘sharing’ and/or distribution of copyrighted literary works on
various social media platforms particularly on whatsApp. The following publications
are noteworthy: Dr Miguna Miguna’s ‘Peeling Back the Mask’ and ‘Kidneys for the
King’, Michelle Obama’s ‘Becoming’, Michael Wolf’s ‘Fire and fury: Inside the
Trumps Whitehouse’ among others. Pirated copies of these publications were
widely circulated online, to great detriment of their IPRs. Unfortunately, the
IPR owners have not been able to enforce their IPRs against the infringers, who
are often ‘faceless’.

Counterfeits and
online market space

Thirdly, quite a number of small and medium sized business take advantage of the sizeable online community[7]: there’s an upsurge in boutique e-commerce platforms targeted at SMEs[8]. The online market space enhances ease of access but with little opportunity for verification of the authenticity of the products being traded in the online market place. The buyers would favor the convenience especially for the sale of goods, but most aren’t allowed an opportunity to ascertain the ‘authenticity’ or otherwise of the products being traded in the platforms. The bigger enterprises have equally sought to align their marketing strategies and distribution to leverage on the online sphere e.g. the mabati rolling mills free online quotations.

Solutions?

It is however not all
gloom and doom: the Anti-Counterfeit Act, 2005 (which recently underwent
substantive amendments albeit under a
miscellaneous statute law), primarily provides for enforcement against
Counterfeiting. Copyright Piracy on the other hand is proscribed by the
Copyright Act, 2001. These laws however are not adequately framed to address piracy
and counterfeiting in the online market place, and much like established e-commerce
platforms the options remain limited to self-help strategies adopted including
authentication services, and, accreditation and registration of merchants. The
amendments to the Anti-Counterfeit Act include expansion of the scope of
definition of counterfeits, and greater collaboration between the agencies
involved, the ACA, KRA and KEBS. The Copyright Amendment Bill, 2017 equally
seeks to help address piracy in the online sphere, through availing protection
for Internet Service Providers (ISPs) but also enjoining them to take down
infringing works upon notification. KECOBO properly clothed with jurisdiction
would be a useful enforcer (in collaboration with ISPs) against online piracy.

The Kenya Information
and Communications Act, 1998 (KICA) regulates the online space by providing
that the Communication Authority of Kenya is obliged to facilitate development
of e-commerce.[9] The
Act however fails to address trade on counterfeits online: a realignment of
these regimes without unduly encumbering the online space may suffice. The
Competition Authority is equally tasked with protection of consumer welfare, under
Part VI of the Competition Act, 2010, which mandate properly understood,
extends to protection from counterfeits and pirated goods.

The challenge for
Kenya, therefore, lies not in an inadequacy in laws, its more an absence of a
purposive, conscientious and harmonized application of the same – infringement online, certainly equates
infringement offline being minded of the peculiarities of the digital sphere.
The goods being traded online will usually ultimately be physically delivered, (with
the exception of those consumed online especially for pirated works) bringing
them within the jurisdiction of the general laws on counterfeiting; and as such
then this would be curbed by the existing legal regime.

The growth of internet with the contemporaneous growth of social media, with its inherent traits exposes the increased vulnerabilities to IPRs and IPR owners. There is need to ensure that even within these increased vulnerabilities the law equally adopts, and adapts to curb what is proscribed offline from being perpetuated online. KICA equally fails to respond to infringement of IPRs in the online environment. The Computer Misuse and Cyber Crimes Act, 2018 (suspended) addresses itself to proscribing misuse of computer systems and cybercrime; despite regulating the digital sphere, it does not address illicit trade or piracy online. The enforcement of IPRs at the online market place calls for a balance between consumer protection and asserting IPRs.

The growth of the online market place is certainly integral in facilitating local and international trade; however, it is necessary to adopt regulatory measures that do not bar trade, and opt for the ones that least interfere with the independence and freedom of this space; al beit minded not to compromise the legitimate interests of consumers’ safety vis-a-vis the rights of IPR holders. One solution would be requiring the e-commerce platforms to adopt certain minimum guarantees for their offerings embedded in their terms and conditions. Adoption of various self-help “non-legal” measures targeted at enhancing verification is apt; includes use of barcodes, use of light wavelengths inter alia.

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2 thoughts on “Fakes and Pirates Online: Is it an Unregulated Space in Kenya?”

Hey, you write a magnificent article and its really helpful for us, I have some queries related to this topic. What does it means that speed and efficiency are core important for E-commerce? What are the essential strategies for e-commerce or for increasing sales? How can e-commerce harm us?

On your queries;
(i) My observation was that most users of e-commerce platforms often elect
to use varied e-commerce platforms for various conveniences that it
avails and usually speed and efficiency in acquiring a particular
product or service through e-commerce is a key incentive for them. So
that a popular platform always has to prioritise these twin considerations in its
operability.

(ii) An essential strategy I have observed has to include a responsive
user experience from the usage of a particular platform. This would
inform the development of the ICT infrastructure under which the
system runs, the user interface, the product or service offerings
available inter alia. But importantly consideration has to made to the
‘Streisand effect’ in whatever enforcement strategies are adopted by
these platforms.

(iii) The harm accruing from the use of e-commerce largely concerns
the possible proliferation of counterfeits and pirated works. These
would have the concomitant exposure to substandard and often harmful
products with serious health consequences especially from
pharma-products, electronics, beauty products or even food-stuffs.
Additionally the anonymity availed by these platforms creates an
exposure for laundering of illicit money with the consequences that
would follow on abetting crime and negatively influencing the economy.